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7. Homicide 304-Refusal of charge that if Ex parte STATE ex rel. ATTORNEY GEN jury was not satisfied beyond reasonable ERAL (Jesse Harper v. State).
doubt that killing of deceased was not acci(2 Div. 857.)
dent, to acquit, held proper.
In prosecution for murder in second de(Supreme Court of Alabama. Nov. 6, 1924.) gree, instruction to acquit if jury was not sat
isfied beyond reasonable doubt that killing was Certiorari to Court of Appeals.
not accident was properly refused. Harwell G. Davis, Atty. Gen., for petitioner, Jerome T. Fuller, of Centerville, opposed,
8. Indictment and Information Om 191(4)-Un
der indictment for murder in second degree THOMAS, J. Petition of the state of Ala
conviction of some offense can be had for acci. bama, on the relation of its Attorney General,
dental killing while making unlawful assault. for certiorari to the Court of Appeals to re Under indictment for murder in second deview and revise the judgment and decision of gree, accused could be convicted of some dethat court in the case of Jesse Harper v. State, gree of criminality for death accidentally caus102 So. 55.
ed while making unlawful assault. Writ denied.
9. Homicide Actual intent to kill not ANDERSON, C. J., and SOMERVILLE and necessary to conviction under indictment for BOULDIN, JJ., concur.
murder in second degree.
In prosecution for murder in second degree, actual intent to kill is not necessary to conviction, if accused was engaged in unlawful act.
ORR V. STATE. (6 Div, 397.)
10. Criminal law 763, 764(9) Requested
charges as to malice and as to kind of homi.
cide held invasive of province of jury. (Court of Appeals of Alabama. June 3, 1924. Rehearing Denied July 22, 1924.)
In prosecution for murder in second de
gree, where death was caused by blow with oil 1. Homicide Om 112(1)-To establish plea of can, requested charges that use of oil can alone self-defense, accused 'must be free from fault did not show malice, and that he could not be in bringing on difficulty.
convicted of murder in second degree, or of To establish plea of self-defense accused manslaughter, were invasive of province of must be entirely free from fault in bringing on
jury; evidence being in conflict. difficulty.
1. Criminal law -763, 764(7, 24)-Charges 2. Homicide Om 151(3)-Burden of proving ac to acquit if jury believed evidence or if any
cused was not free from fault in bringing on juror had reasonable doubt, held invasive of difficulty is on state.
province of jury. Burden of proving that accused, pleading In prosecution for murder in second deself-defense, was not free from fault in bring-gree, requested charges that if jury believed ing on difficulty is on state.
evidence to acquit, and that if any member 3. Criminal law Com 1172(2)-Argumentative in killing was accidental to acquit, were invasive
thereof had reasonable doubt as to whether struction defining reasonable doubt held not of province of jury;, evidence being in conflict. reversible error.
In prosecution for murder in second de- | 12. Criminal law w 815(13) Requested gree, charge defining reasonable doubt, while
charge as to conviction of murder in second argumentative, was not reversible error.
degree, or manslaughter in first degree, held 4. Homicide Cm112(1)-One provoking diffi
not predicated on all evidence. culty cannot invoke doctrine of self-defense.
In prosecution for murder in second degree, One provoking difficulty, causing necessity requested charge that, if there was reasonable to kill another to save his own life, cannot in doubt as to whether accused intended to kill voke doctrine of self-defense, however great in second degree, or of manslaughter in first de
deceased he could not be convicted of murder his danger after entering difficulty.
gree, was properly refused; not being predicat5. Criminal law 789(9)-Charge as to rea ed on consideration of all evidence. sonable doubt held proper.
Charge that, if jury had abiding conviction 13. Criminal law Om761(8)–Requested chargof truth of charge, they were convinced beyond
es held to assume that oil can used in killing
deceased was not deadly weapon which was reasonable doubt, and should convict, was
question for jury. proper.
In prosecution for murder in second degree, 6. Criminal law Ow763, 764 (1) Requested in which deceased died from blow with oil can,
charge that oil can was not deadly weapon requested charges that law does not presume held invasive of province of jury.
malice from use of oil can, and that malice In prosecution for murder in second de- cannot be inferred from use of spout of oil can gree, requested charge that as matter of law oil in repelling assault, assumed as fact that oil can is not a deadly weapon was invasive of can was not deadly weapon, which was question province of jury.
(102 So.) 14. Homicide am 268 - Whether oil can was Certiorari denied by Supreme Court in Ex deadly weapon held jury question.
parte Orr, 102 So, 61. In prosecution for murder in second degree,
Defendant was the engineer and deceased , where deceased died from blow with spout of the flagman or a passenger train running oil can, whether oil can was deadly weapon was
through Fayette county. When this train jury question,
stopped at the station of Bangston a diffi15. Criminal law Ow761(6)-Requested charge culty ensued between these two, which was
assuming death was accidental, and that oil stopped by bystanders. Following this altercan was not deadly weapon, held bad.
cation, it appears, defendant in returning In prosecution for murder in second degree, to his engine kicked the cap of deceased and in which deceased died from blow with oil can,
picked up his oil can.
accirequested charge assuming death
Whereupon deceased dental, and oil can was not deadly weapon, was struck defendant, and defendant struck debad.
ceased in or under the eye with the spout of
the oil can, from which death resulted on 16. Homicide Om 300 (4) Requested charge
the following day. that citizen has right to protect himself from
On examination of defendant he was illegal assault held argumentative. In prosecution for murder in second degree, strike him in the eye?” The ruling of the
asked: “Did you have any idea you would requested charge that person has right to protect himself from illegal assault, using so much court sustaining the state's objection thereforce as is necessary in order to repel such as
to is reserved as error. sault, held argumentative.
These charges were given at the request of
the state: 17. Homicide 300 (4)-Requested charge as to whether words could be considered as "1. I charge you that a defendant must be starting of difficulty held argumentative. entirely free from fault in bringing on the dif
Requested charge that words not reason- ficulty, before he can set up the plea of selfably calculated to produce difficulty are not to defense.” be considered as starting it held argumentative. “4. The court charges the jury that a doubt,
to justify an acquittal, must be reasonable. 18. Criminal law em807(1)-Requested charge It must be an actual and substantial doubt, not not to consider whether there had been or
a mere possibility or speculation. A reasonawould be other violent deaths in county held ble doubt is not a mere possible doubt, beargumentative.
cause most things relative to human affairs and In prosecution for murder in second degree, depending on moral evidence is open to some requested charge that jury could not consider possible or imaginary doubt. whether there had been or would be other “5. One who provokes a difficulty, who by his deaths by violence in county held argumenta- own wrong contributes to a situation out of tive.
which arises a necessity to take the life of an19. Criminal law Em778(4)-Requested charge doctrine of self-defense to justify the homicide
other to preserve his own, cannot invoke the as to presumption of innocence of accused in he commits in such difficulty; cannot plead a mind of juror held argumentative. In prosecution for murder in second de necessity to kill which arose from his own
wrong." gree, requested charge that juror had duty to
“7. The court charges the jury that, even presume innocence of accused, which presump- though they should find from the evidence that, tion should continue until overcome by evidence at the time the defendant struck Woodall, he convincing jury beyond reasonable doubt, and, (John Orr) was in imminent danger of his life, unless presumption was so removed, to acquit, or of suffering great bodily harm, or that the beld argumentative.
circumstances attending the difficulty were such 20. Criminal law paw 342—Accused may not tes
as to impress the mind of a reasonable man tify to undisclosed motive for doing unlawful that the defendant was in actual danger, yet, if act.
they also believe from the evidence beyond a
reasonable doubt that the defendant entered inAccused may not testify to undisclosed motive for doing unlawful act.
to the difficulty willingly, and was not without
fault in bringing on the difficulty, then his plea 21. Criminal law ww 665(4), 1153(5)-Permit- of self-defense must fail.” ting witness violating rule to testify is dis "9. The court charges the jury that, if, after cretionary, and ruling not reversed in ab- considering all the evidence in this case, you sence of abuse thereof.
have an abiding conviction of the truth of the Where witness violated rule, and remained charge, then you are convinced beyond a reain courtroom, and in hearing of other witnesses, sonable doubt, and it would be your duty to discretion of allowing him to testify is with convict the defendant.” trial court, whose decision, in absence of abuse of discretion, will not be reversed.
The following requested charges were re
fused to defendant: Appeal from Circuit Court, Fayette Coun
"B. I charge you that an oil can such as the ty; Ernest Lacy, Judge.
one used in this case is not as a matter of law
a deadly weapon." John Orr was convicted of manslaughter "E. If you are not satisfied beyond all reain the first degree, and appeals. Affirmed. / sonable doubt by the evidence in this case that
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
the killing of Woodall was not an accident,, Cornelius, Asst. Atty. Gen., and Curtis, Penyou must acquit the defendant."
nington & Pou, of Jasper, for the State. “1. I charge you that, if the evidence in this case has not been sufficient to convince you
SAMFORD, J. [1, 2] Charge 1, requested · beyond all reasonable doubt that defendant hád by the state, asserts a correct legal proposireasonable ground to believe that the use of the oil can, as used by him, would probably produce tion, the giving of which by the court was the death of deceased, you cannot convict the not error. Of the three requisites necessary defendant of any offense as charged in the in- to establish a plea of self-defense, in such dictment.
cort as that it may generate a reasonable *2. You cannot find from the use of the oil doubt of defendant's guilt, after a consideracan alone that defendant was prompted by tion of the entire evidence, the first is that malice in its use.
the defendant was entirely free from fault “3. I charge you cannot convict the defendant in bringing on the difficulty True, the burin this case of murder in the second degree.
“4. I charge you that you cannot convict the den of proving this, that the defendant was defendant in this case of manslaughter in the not free from fault, is on the state, but that first degree.
does not affect the rule as stated. 1 May“5. I charge you that you cannot convict de- field Dig. p. 807, par: 8; Vaughn v. State, fendant in this case of manslaughter in the sec 17 Ala, App. 383, 84 So. 879. Moreover, the ond degree.
charge when given became a part of the “6. I charge you that, if you have any rea- court's oral charge, which dealt fully with sonable doubt in your minds as to whether or
the law of self-defense. not the defendant intended to kill the deceased,
[3, 4] Charge 4 is palpably an argument, you cannot convict him of murder in the second degree nor of manslaughter in the first and might have been refused, but is not error degree.
to a reversal, and charges 5 and 7, given at "7. I charge you that the law does not pre- the instance of the state, are so clearly the sume malice on the part of defendant from the law as not to need discussion. use of an oil can ia the manner in which it was  Charge 9, given at the request of the used by the defendant in this case.”
state, was approved in Prater v. State, 107 "10. You cannot infer malice from the use
Ala. 27, 18 So. 238. of the spout of engineer's oil can in repelling
 Charge B, requested by the defendant, an assault." "12. The accidental killing of a human being
was invasive of the province of the jury. with an instrument not ordinarily calculated to
[7,8] Charge E, requested by defendant, produce death, is not an offense against the
was properly refused. If the killing, though criminal laws of Alabama.”
an accident, was done while the defendant "18. The court charges the jury that if you
was making an unlawful assault, he would believe the evidence in this case you will acquit be guilty of some degree of criminality, and the defendant."
for such could be convicted under this in“20. If any member of the jury kas in his dictment. Sanders .v. State, 105 Ala. 4, 16 mind any reasonable doubt as to whether or not so, 935. the killing of Mr Woodall was an accident, you
 The vice of charge 1, requested by demust acquit the defendant.
21. Any citizen has a right to protect him- fendant, lies in the fact that an actual intent self from an illegal assault, and has the right to kill is not an essential element necessargi to use as much force as is necessary in order to a conviction, if the defendant was at the to repel such assault."
time engaged in an unlawful act. Sanders “23. I charge you that words which are not V. State, 105 Ala. 4, 16 So. 935; Barnes v. reasonably calculated to produce a difficulty are State, 134 Ala. 36, 32 So. 670. not to be considered as the starting of a dif Charge F was covered by given charge 11 ficulty."
and by general charge of the court. “26. I charge you that in considering the guilt or innocence of this defendant you cannot invasive of the province of the jury.
[10, 11] Charges 2, 3, 4, 5, 18, and 20 are
The consider whether or not there has been or will be any other deaths by violence in Fayette evidence was conflicting. West v. State, 17 county."
Ala. App. 117. “28. It is the duty of a juror to come into the  Charge 6 is not predicated upon a jury box with the presumption that the defend. consideration of all the evidence. ant is innocent. It is his further duty to con [13, 14] Charges 7 and 10 assume as a fact tinue to presume the defendant innocent until that the oil can, which was the instrument the state has offered sufficient trustworthy and used by defendant in causing the death of reliable evidence to convince the jury beyond deceased, was not a deadly weapon.
Under all reasonable doubt that innocence is wholly the facts of this case this was a question for inconsistent with the evidence offered. Unless such presumption has been so removed by evi- the jury. Winter v. State, 123 Ala. 1, 26 So. dence in this case you must acquit the defend- 949. ant.”
 Charge 12 assumes the homicide to
have been accidental, and that the instruBlack, Harris & Foster, of Birmingham, ment producing death was not a deadly and S. T. Wright, of Fayette, for appellant. weapon. The charge was bad. 1 Mayfield
Harwell G. Davis, Atty. Gen., and 0. B. Dig. p. 175, $ 22.
(102 So.) Charges 15 and 16 are covered by given, 3. Railroads 395—General count for frightcharge 11,
ening horse held to authorize recovery for [16-19] Charges 21, 23, 26, and 28 are pal subsequent negligence in emitting steam. pably arguments.
In action for injuries to horse, count averCharge 24 is so manifestly bad as not to ring in general terms that horse was fright
ened and ran away owing to negligence of derequire citation of authority.
fendant's employees in operating engine, au That part of the court's oral charge thorized recovery for subsequent negligence to which exception was reserved, if tending consisting in emission steam from locomoto error, was corrected by the judge by. full tive. explanation before the jury retired. It is
4. Railroads Om 401(8)-Charge held erronea rule too well settled to require discussion
ous as not requiring contributory negligence here that a defendant may not testify to an
to be proximate cause of injury by frightenundisclosed motive for doing an unlawful
ing horse; “remoto"; "remote cause"; act. Brown v. State, 7 Ala. App. 26, 61 "slightest." So. 12.
In action for damages from frightening (21) When a witness has violated the rule, horse by escaping steam from locomotive, and remained in the court room, and in the charge that, if "condition of the horse, his hearing of the other witnesses, the discre- nervousness, contributed, even in a remote de
* plaintion of allowing such witness to testify is gree, to the injury occasioned, * *
tiff would be barred of recovery," held erronewith the trial court, and in the absence of an
ous, as not requiring contributory negligence abuse of this discretion will not be reversed. to be proximate cause of injury; "slightest" Webb v. State, 100 Ala. 47, 14 So. 865.
and "remote," as applied to degree of negliWe find no error in the record, and the gence, being synonymous, "remote" meaning injudgment is affirmed.
considerable, slight, and "remote cause” Affirmed.
cause operating mediately through other causes to produce effect.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Remote
-Remoteness; Remote Cause; Slight.]
5. Negligence 82-Plaintiff's negligence (Supreme Court of Alabama. Oct. 6, 1924. must be concurring proximate cause of Rehearing Denied Nov. 27, 1924.)
To be available under plea of contributory Certiorari to Court of Appeals.
negligence plaintiff's negligence must be conBlack & Harris, of Birmingham, and S. T. curring proximate cause of injury, and not reWright, of Fayette, for petitioner.
mote cause or mere antecedent occasion or conHarwell G. Davis, Atty. Gen., and Curtis, dition. Pennington & Pou, of Jasper, opposed.
6. Railroads en 396(1) - Plaintiff averring
emission of unnecessary volume of steam PER CURIAM. Petition of John Orr for
frightening horse assumed burden of proof. certiorari to the Court of Appeals to review
In action for damages from frightening and revise the judgment and decision of that court in the case of Orr v. State, 102 So. 58. borse hitched near track, plaintiff, averring
emission of unnecessary volume of steam, asWrit denied.
sumed burden of proving it, and charges impos
ing such burden were proper. ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur.
7. Railroads Cw360(2)—Negligent frightening of horses by steam actionable.
When engine is managed in such reckless or negligent manner as to frighten horses and cause them to run away, company is liable for
consequences, as where engineer suddenly disNEWSOME V. LOUISVILLE & N. R. CO. charges jet of steam near passing team. (8 Div. 213.)
8. Trial 194(15)-To knowingly hitch horse (Court of Appeals of Alabama. Nov. 5, 1924.) in close proximity to track is not contribu
,tory negligence, 1. Negligence uw 119(2)—Specific counts do Charge that to knowingly hitch borse, not authorize recovery on unspecified neglio easily frightened, in close proximity to track, gence,
is contributory negligence, held invasive of Under counts specifically setting out initial province of jury. begligence, plaintiff could not recover for neg
Charge on liability for ligence not specified, or occurring after dis- 9. Trial w256 (9) covery of peril.
frightening horse by steam held proper.
In action for damages resulting from 2. Negligence 119(7)-Subsequent negli, frightening horse, charge that defendant had gence provable under general count.
right to use the track along the street, and Subsequent negligence may be proved un- in such use to make the usual noises and 'emisder count alleging negligence generally.
sion of steam which were incident to operation em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexea
of its engine, was not error in absence of re-, unnecessarily caused by the defendant's agents quest for explanatory charge.
"3. I charge you, gentlemen of the jury, there 10. Railroads 360(2)-Charges on liability is no presumption in this case that said plain
for frightening horse by operation of train, tiff's borse was frightened by the emission of held proper.
an unusual amount of steam from defendant's In action for damages resulting from engine. frightening of horse hitched near track, cer “4. I charge you, gentlemen of the jury, that tain charges exonerating defendant from re- noise may be unusual to persons and horses sults of reasonable operation of trains, and re not accustomed to it, and usual as signals and quiring plaintiff to prove unnecessary emis- incident to the running, movements, and operasion of steam, held proper.
tions of an engine.
“5. I charge you, gentlemen of the jury, that 11. Appeal and error Omw 1064(1)-Charge, in the authority to operate a railroad includes the
action for injuries to horse hitched near right to make the noises incident to the movetrack, held not reversible error though ar- ment and operation of its engine, as in the case gumentative.
of escape of steam and rattling of cars; and In action for damages from frightening of also to give the usual and proper admonitions horse hitched near track, charge "noise may be of danger, as in the sounding of whistles, and unusual to persons and horses not accustomed the ringing of bells, and a railroad, in the to it, and usual as signals and incident to run. exercise of such rights is not liable for injuning, movements, and operations of an en- ries occasioned by horses, when being driven or gine," being a correct statement of law, though hitched along the highway, taking fright at argumentative, was not reversible.
noises occasioned by the lawful and reasonable 12. Evidence em 474(19)-Owner may testify
exercise of its rights and duties, and I charge
you that the plaintiff's horse hitched upon the as to value.
highway, and the defendant operating its trains One not an expert may testify as to value over the tracks, were each bound to use their of horse which he has owned and knows well. privileges with reasonable precautions, pru13. Evidence Cm471(2)-Comparison of horse dence, and diligence, and the defendant had the
with others owned by witness held mere con right to make all the reasonable and usual clusion.
noises incident to the running of its train. In action for injuries to horse, statement plaintiff to establish by the evidence, to your
“6. I charge you that it is the duty of the of witness, "I think he was as good a horse as reasonable satisfaction, that the act complained I ever drove,” was properly excluded as mere of was unnecessary, and if you are not so conclusion.
reasonably satisfied from the evidence that this
act was so shown, your verdict should be for Appeal from Circuit Court, Morgan Coun- the defendant. ty; James E. Horton, Jr., Judge.
*7. I charge you, gentlemen of the jury, that Action by T. J. Newsome against the Louis- the burden of proof is upon the plaintiff to
prove to your reasonable satisfaction, that the ville & Nashville Railroad Company for dam- making of noise complained of was unnecesages resulting from the frightening of a
sary to the skillful operation of defendant's horse by a locomotive engine. From a judg-engine. ment for defendant, plaintiff appeals. Re "8. I charge you, gentlemen of the jury, that versed and remanded.
the defendant had the right to use the track On the trial of the case defendant's witness and it had the right in the use of the said track,
along the street at the time of this occurrence, Stubblefield testified that he had owned the to make the usual noises and emission of horse in question, and that the horse was
steam which are incident to the operation of skittish and scared of locomotives, that he its engine. saw the horse shortly before the injury and "9. I charge you, gentlemen of the jury, if he seemed to be in good shape; and that “I you believe from the evidence that the plainthink he was about as good a horse as I ev. tiff knowingly hitched a horse, easily frighter drove." On motion of defendant, the ened, in close and dangerous proximity to decourt excluded the quoted statement, and to fendant's track, then he would be guilty of this ruling plaintiff reserved an exception.
contributory negligence. These charges were given at defendant's
“10. I charge you, gentlemen of the jury,
that the defendant in this case had the right request:
to use its tracks and to make all the usual "1. I charge you, gentlemen, that the bur- noises incident to the running and moving of den of proof is on the plaintiff to prove to your its engine, and to make all the usual emissions reasonable satisfaction that there was an unus- of steam which is incident to the running and ual emission of steam, or that the engine in moving of its train, and if you are reasonably its operation, made an unusual or unnecessary satisfied from the evidence that only such noise.
amount of steam was emitted, and only such "2. The defendant has as much right to use noises were made, then it is your duty to rethe track on the street as plaintiff had to use turn a verdict for the defendant." the street, and defendant is not liable for the "A. I charge you, gentlemen of the jury, that injuries caused by the frightening of the horse railroad companies bad (have) a right to operunless the evidence shows to your reasonable ate their trains; that such companies have the satisfaction that an escape of the steam was) right to make all the usual noises and emis
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes